The cry of ‘more than one dispute!’ is often heard in adjudications. It’s a saber rattler. A ‘mettle’ detector. An attempt to derail the process. Two recent cases have considered whether the cry is likely to succeed. Both cases involve housing associations. Both cases involve the ACA Standard Form of Contract for Term Partnering. Both cases involve the CIC Rules.
In the Willmott Dixon case, Willmott Dixon served two separate notices of intention to refer a dispute to adjudication. It made two separate applications to the CIC. It paid two sets of fees. The CIC appointed same adjudicator for both disputes. The adjudicator issued two separate timetables. He ran the adjudications in parallel. There were two sets of documents and the adjudicator reached a decision in each adjudication. He found in favour of Willmott Dixon. Newlon refused to pay. Newlon cried foul: more than one dispute!
Newlon argued that section 108(1) of the Housing Grants, Construction and Regeneration Act 1996 (the “Act”) allows the adjudicator to determine only one dispute at any one time. The Act, therefore, prevents the adjudicator from running simultaneous adjudications. The judge disagreed. He said that parallel adjudications were permitted. This seems sensible, particularly when you consider that in large infrastructure contracts the parties often name the adjudicator and it is common for the adjudicator to deal with more than one dispute at any one time. The same is true for NEC contracts where the intention is that the same adjudicator will decide each dispute. This can save time and money as the adjudicator develops a good understanding of the contract, the facts and the parties.
In the TSG case, TSG served one notice and one referral. TSG referred three issues to the adjudicator. Each issue related to the way in which South Anglia had terminated the contract. The adjudicator found in TSG’s favour. South Anglia cried foul: more than one dispute!
South Anglia argued that TSG had referred three distinct disputes to the adjudicator. TSG disagreed. It said that it had referred one dispute that had three sub-issues. The judge preferred TSG’s argument and he made the following comments:
- a dispute can in time change;
- a dispute can have any number of issues within it;
- a dispute is a question of fact and the courts should not adopt an over legalistic analysis;
- the notice and the referral are not always determinative of what the dispute is. The background facts are also important; and
- a rule of thumb is: if issue 1 cannot be decided without deciding all or parts of issue 2, that points to there being only one dispute.
A dispute has been compared to a snowball rolling downhill. It attracts more issues and nuances as it rumbles on. But, even though it attracts more issues, it remains a single dispute. It seems, therefore, that unless the case is very clear, the courts and adjudicators are unlikely to be persuaded by the cry of ‘more than one dispute!’.
Willmott Dixon Housing Ltd v Newlon Housing Trust  EWHC 798 (TCC)
TSG Building Services Plc v South Anglia Housing Ltd  EWHC 1151 (TCC)